TRIAL COURT PROPERLY APPLIED §768.76(4) TO DETERMINE HEALTH INSURER’S REIMBURSEMENT AMOUNT

Ingenix v. Ham, 35 Fla. L. Weekly D993 (Fla. 2^nd DCA May 5, 2010):

After a settlement in a medical malpractice case, the estate filed a motion for equitable distribution, arguing that the health insurer was not entitled to full repayment of its bills (instead subject to §768.76(4) which allows reimbursement after a deduction for the health insurer’s pro rata share of attorney’s fees and costs).

The health insurer relied on Travelers v. Boyles, 679 So. 2d 1188 (Fla. 4^th DCA 1996), to argue that §768.76 only applies to claims arising out of reimbursement rights not founded on a contract.  According to Travelers, where the statute is not implicated, a policy provision may allow for full reimbursement. 

However, Travelers does not allow the policy provision to control when §768.76(4) is otherwise applicable.  The court determined that this case presented the exact scenario envisioned by §768.76(4), and found that when an insurance policy contains a right of reimbursement, the statute applies and requires a reduction of the reimbursement by the pro rata share of costs and attorney’s fees.

IN CASES WEHRE §440.11 (INTENTIONAL TORT EXCEPTION) AND §768.28(9)(a) CONFLICT, SOVEREIGN IMMUNITY CONTROLS AND BARS LAWSUIT

Smith v. DCF, 35 Fla. L. Weekly D1011 (Fla. 1^st DCA May 6, 2010):

An employee of a Florida state hospital suffered a fatal heart attack at work, after he was beaten when he intervened into a violent physical confrontation between an inmate and a coworker.  At the time of his death, he was a unit training rehabilitation specialist at the hospital’s forensic unit, which houses people deemed incompetent to stand trial or found not guilty by reason of insanity. 

The estate filed a wrongful death lawsuit against DCF (which operated the hospital).  The complaint alleged the Department had engaged in conduct virtually certain to cause injury or death to an employee. 

The allegations of the plaintiff’s complaint tracked the language of §440.11(1)(b), the intentional tort exception to work comp immunity. 

Unfortunately, while the trial court agreed with plaintiff’s allegations, it dismissed the case finding there was no case against DCF, because the state has not waived sovereign immunity for the “wanton and willful disregard” of a person’s safety. 

Unfortunately, when the provisions of §440.11(1) and §768.28(9)(a) conflict, the provisions of §768.28(9)(a) control. 

ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT ON GROUNDS THAT DEFENDANT SUDDENLY AND UNEXPECTEDLY LOST CONSCIOUSNESS BEFORE CRASH – THERE WERE ISSUES OF FACT AS TO WHETHER LOSS OF CONSCIOUSNESS WAS SUDDEN AND FORESEEABLE

Abreu v. F.E. Development Recycling, 35 Fla. L. Weekly D1018 (Fla. 5^th DCA May 7, 2010):

As a general rule, the operator of an automobile who unexpectedly loses consciousness or becomes incapacitated is not chargeable with negligence as a result of the loss of control.  To establish the defense of sudden and unexpected loss of capacity or consciousness, the defendant must prove: (1) that the defendant suffered a loss of consciousness or capacity; (2) the loss of consciousness or capacity occurred before the defendant’s purportedly negligent conduct; (3) the loss of consciousness was sudden; and (4) the loss of consciousness or capacity was neither foreseen nor foreseeable. 

Here, it was undisputed that the defendant lost consciousness while driving and suffered a brain aneurism.  However, the medical notes indicated that he had a history of aneurisms and had a nephrology consult.  In addition, there were records showing that on the date of the accident, defendant had a headache for several hours prior to losing consciousness, and felt like his head was spinning.  The records also show that he was trying to drive home but started having blurry vision, when he could not see, and felt like he was going to pass out.

The court held that such evidence raised a question of fact regarding the “suddenness” of the loss of consciousness, and therefore reversed the summary judgment.

ORDER COMPELLING DEFENDANT TO PRODUCE ALL COMPUTER HARD DRIVES AND CELL PHONE SIM CARDS WAS A DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW

Holland v. Barfield, 35 Fla. L. Weekly D1018 (Fla. 5^th DCA May 7, 2010):

Plaintiff sued defendant and five others alleging damages for the wrongful death of a man who fell from the tenth floor balcony of the defendant’s residence.  The plaintiff asked defendant to produce all computer hard drives and cell phones from 24 hours before the accident to the present time.  The trial court granted plaintiff’s motion to compel these records. 

The court found that the trial court’s order was over broad, and allowed the plaintiff to review, without limit or time frame, all of the information on defendant’s computer and mobile phone records.  The court gave no consideration to her constitutional right of privacy, her right against self-incrimination or privileges (including attorney/client and work product privileges).

In light of the potential exposure to personal communications from the computer that would expose confidential matters as well as matters extraneous to the litigation such as banking records, the order departed from the essential requirements of law.

IN AN EN BANC DECISION, THE COURT FOUND THAT THE CLAUSE IN A PIP POLICY PROVIDING THAT “ANY PERSON OR ORGANIZATION MAKING CLAIM OR SEEKING PAYMENT MUST, AT OUR OPTION, SUBMIT TO AN EXAMINATION UNDER OATH, PROVIDE A STATEMENT UNDER OATH, OR DO BOTH, AS REASONABLY OFTEN AS WE REQUIRE,” WAS NOT BINDING ON AN ASSIGNEE OF THE RIGHT TO PAYMENT OF NO-FAULT BENEFITS

Shaw v. State Farm, 35 Fla. L. Weekly D1020 (Fla. 5^th DCA May 7, 2010):

The issue before the court was whether an EUO clause in a policy is binding on an assignee of the right to payment of no-fault benefits.  It is undisputed that a provision in an insurance policy that requires the insurer to submit to an EUO qualifies as a condition precedent to the recovery of benefits.  The question arising in this case was whether an insurer could include in the policy a provision that extends the duty to submit to an EUO to assignees of the insured’s right to insurance proceeds. 

Because the assignment of a contract does not entail the transfer of any duty to the assignee, unless the assignee assents to assume the duty, a medical provider as assignee of the right of the insured to payment under the insurance contract, has no duty to perform any covenant under the contract because it never agreed to do so. 

The court certified the following question to the Florida Supreme Court:

Whether a health care provider who accepts an assignment of no-fault insurance proceeds in payment of services provided to an insured can be required by a provision in the policy to submit to an examination under oath as a condition to the right of payment?

SECOND DISTRICT MAKES CLEAR THAT EXPERT TESTIMONY IS STILL NEEDED TO SUPPORT MOTION FOR ATTORNEY’S FEES

Sourcetrack, LLC v. Best Products, 35 Fla. L. Weekly D1032 (Fla. 2^nd DCA May 7, 2010):

While it is true that the standard of review of an order setting an amount of appellate attorney’s fees is often described as an “abuse of discretion,” the court noted that said discretion can only be exercised by a court after it has received competent and substantial evidence permitting a discretionary decision.

While there is some debate currently about whether trial judges should be given greater latitude in awarding attorney’s fees without receiving expert testimony, the Second District continues to require such testimony.  Especially in cases of a certain magnitude, it is important for a trial judge who may be unfamiliar with the work typically performed by appellate counsel, to obtain testimony on the reasonableness of the fees and the need for the legal work.  Thus, it was error for the trial court to award fees without competent and substantial evidence to support the award.

ALLEGATIONS THAT DEFENDANT’S ACTIONS IN MAKING FALSE STATEMENTS ABOUT THE CAUSE OF DECEDENT’S DEATH, WHICH LED TO THE INTERRUPTION OF DECEDENT’S FUNERAL AND RETURN OF HER BODY FOR A SECOND, MORE THOROUGH AUTOPSY, ALLEGED ACTIONS RISING TO THE LEVEL OF ATROCIOUS AND INTOLERABLE BEHAVIOR SUFFICIENT TO SUPPORT A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Thomas v. Hospital Board of Directors of Lee County, 35 Fla. L. Weekly D1038 (Fla. 2^nd DCA May 7, 2010).

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NO CAUSE OF ACTION FOR THIRD-PARTY BAD FAITH AGAINST AN INSURER WHEN THE INSURER’S ACTIONS ARE NOT THE CAUSE OF DAMAGES TO THE INSURED OR WHEN THE INSURER’S ACTIONS DID NOT RESULT IN EXPOSURE TO LIABILITY IN EXCESS OF THE POLICY LIMITS

Perera v. USF&G, 35 Fla. L. Weekly S235 (Fla. May 6, 2010):

The plaintiff’s husband was crushed to death by a piece of equipment during the course of his employment with Estes Express.  At the time of his death, the employer maintained three policies.  One of them was issued by USF&G and had a limit of a million dollars which was an excess work comp liability policy. 

USF&G denied coverage based on a coverage exclusion.  The plaintiff formally demanded $12 million dollars to settle the case.  USF&G was asked to leave mediation when it advised it would not tender its limits due to its coverage defense. 

In the months that followed there were many settlement negotiations.  The plaintiff, the employer and the employees entered into a stipulation to settle for $10 million dollars.  The stipulation provided that the defendant and the employees would pay $5 million dollars and provide a written waiver of the work comp. lien.  Although not stated in the stipulation, the negotiated settlement also provided that $750,000 would come from the employer, $500,000 from another insurer, and $3.75 from a third insurer.  The remaining $5 million was to be sought in a lawsuit against USF&G. 

The trial court found the settlement was in good faith and reasonable, the court approved the stipulation.  Thereafter, the $5 million dollars was paid, and the plaintiff sued USF&G for the remaining $5 million dollars.  One cause of action was for breach of contract, and the other was for bad faith. 

USF&G removed the case to Federal court, and the Federal court granted summary judgment in favor of the plaintiff on the breach of contract claim, requiring it to pay its policy limits of $1 million.  That left $4 million dollars from the consent judgment outstanding.  The Federal court found there was no bad faith because the employer still had millions of dollars in insurance coverage from another insurer at the time of the settlement.  The district court entered summary judgment in favor of USF&G, stating that without an excess judgment, there could be no bad faith. 

The Eleventh Circuit reversed.  It found the determination regarding bad faith had the potential to moot the case and remanded to the Federal court for a jury to consider that issue. 

After the case returned to the Eleventh Circuit subsequent to the bad faith finding, the court found there could be no excess judgment because the employer had additional coverage, and the stipulation was for less than that.  The Eleventh Circuit then said that even in situations where an excess judgment is not required, the bad faith claim was barred, because the insured was never exposed to liability in excess of the limits of the policies.  The Eleventh Circuit found that the employer was never exposed to liability, because any exposure above USF&G’s limits was covered by the policy with $25 million dollars in coverage.

Ultimately, the court concluded that USF&G’s actions did not cause the employer to sustain the damages claimed, nor did it expose the employer to liability in excess of its limits.  Accordingly, the plaintiff as the assignee was not entitled to recover the unpaid portion of the consent judgment.

NEW TRIAL REQUIRED WHEN TRIAL JUDGE ERRONEOUSLY FAILED TO GIVE PLAINTIFF’S REQUESTED JURY INSTRUCTION THAT DEFENDANTS WERE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM NEGLIGENT OR IMPROPER MEDICAL TREATMENT

Nason v. Shafranski, 35 Fla. L. Weekly D943 (Fla. 4^th DCA April 28, 2010):

Defendants admitted negligence in causing an accident, but disputed the amount of damages.  Plaintiff argued on appeal that the trial judge erred by allowing defendants to present expert medical testimony regarding unnecessary surgeries, which thereby shifted the blame for plaintiff’s damages from the defendants, to plaintiff’s treating physician.  The plaintiff argued that the trial judge compounded the error, by refusing to give plaintiff’s requested jury instruction that defendants were responsible for any damages resulting from negligent or improper medical treatment.

The defense doctor was allowed to testify over the plaintiff’s objection that he would not have recommended plaintiff undergo reconstructive surgery, and that the plaintiff had disk bulges like everybody does.  Defendant hammered the point of the unnecessary surgeries home during closing.  During jury deliberations, the juror asked whether the defendant would be relieved of liability if the plaintiff was a victim of “unscrupulous” medical treatment. 

The Fourth District rejected defendants’ argument that the defendants were merely contesting the reasonableness of the medical expenses.  Instead, the defense medical expert was allowed to focus on the treating physician’s lack of skill and judgment and poor results, and the denial of the special jury instruction amounted to reversible error.

In the special concurring opinion, Judge Farmer proposed a “draft” of a jury instruction.  Obviously, I would suggest everyone use this until such time as the Jury Instruction Committee approves one of its own.  (THL – You should use this on a rehearing of your denied Motion in Limine).

*Available to handle appellate and trial support matters for attorneys throughout the state.

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR INSURER IN INSURED’S ACTION TO RECOVER PIP BENEFITS BASED ON THE INSURED’S FRAUD – TRIAL COURT ABUSED DISCRETION IN REFUSING TO AWARD INSURER ATTORNEY’S FEES WHEN THERE WAS NO EVIDENCE THAT OFFER OF JUDGMENT NOT MADE IN GOOD FAITH

Bosem v. Commerce and Industry Insurance Co., 35 Fla. L. Weekly D892 (Fla. 3^rd DCA April 21, 2010):

Noting that cases alleging fraud are generally unsuitable for summary judgment, the court wrote that it had an “extraordinary case” before it where the facts of fraud were so clear, that entry of summary judgment was not only appropriate but compelled. 

In this case, the plaintiff insured, an attorney, sought insurance benefits for lost wages, but had been fully compensated by his employer for a year’s worth of income.  Additionally, his calculation of weekly earnings was immensely exaggerated. 

The insured attempted to separate the fraud for the lost wages from the compensation for medical expenses.  However, the court pointed out that §627.736(4)(g) states that any insurance fraud voids all coverages arising from the claim. 

The court agreed with the insurer’s assertion that the trial judge should have granted the claim for attorney’s fees under the proposal for settlement.  Because there was no evidence that the offer was not made in good faith, and the trial court made no finding to that effect, it was error not to award fees.

TRIAL COURT ABUSED DISCRETION IN DISMISSING ACTION BASED ON FORUM NON-CONVENIENS, WHERE MOTION TO DISMISS WAS UNTIMELY – DEFENDANT ALSO WAIVED THE ISSUE BY INITIALLY REPRESENTING IT WOULD NOT MOVE TO DISMISS ON THAT BASIS

Caraffa v. Carnival Corp., 35 Fla. L. Weekly D892 (Fla. 3^rd DCA April 21, 2010):

The plaintiff sued Carnival for the wrongful death of her husband due to his prolonged exposure to asbestos while working on Carnival ships.  Suit was filed on January 17, 2006, and Carnival served its motion to dismiss in March which included a forum non-conveniens argument.  The case was litigated, amended complaint and new motions to dismiss filed (where Carnival did not raise the forum non-conveniens argument), and finally three years after the original complaint was filed, Carnival asked for dismissal based on forum non-conveniens.

The Third District reversed this dismissal for an abuse of discretion.  Florida Rule of Civil Procedure 1.061(g) requires the service of a motion to dismiss no later than 60 days after service of process on the moving party.  Not only was Carnival well beyond this time frame, the parties conducted discovery and expended time and resources, thereby waiving the right to claim the issue. 

The court further noted that while Carnival included a forum non-conveniens argument in its first motion to dismiss, it declined to contest jurisdiction shortly thereafter, and in responses to requests for production, declared it was not moving to dismiss based on that doctrine anyway.  The court reversed the dismissal.

CIRCUIT COURT IMPROPERLY ORDERED PLAINTIFF TO SUBMIT TO COMPULSORY MEDICAL EXAM IN PRESENCE OF VIDEOGRAPHER HIRED BY AND ACTING FOR DEFENDANT’S COUNSEL

Prince v. Mallari, 35 Fla. L. Weekly D909 (Fla. 5^th DCA April 23, 2010):

The trial judge ordered plaintiff to submit to a compulsory exam under Rule 1.360 in the presence of a videographer hired by the defendant.  The notice setting the exam stated that if the plaintiff videotaped it, the defendant would also at its own expense. 

The plaintiff objected on multiple grounds (no authority under Rule 1.360 to allow a defendant’s rep. besides the IME doctor to be there, IME’s permit only minimal invasion of privacy rights of patients, HIPAA, IME is done by defendant’s expert and plaintiff can have a representative because of its adversarial nature). 

Defense counsel argued he was entitled to his own videotape because plaintiff’s videotape would be work product that defendant could not get.  The plaintiff argued that allowing defendant to videotape would impermissibly invade plaintiff’s privacy, and the videographer was there for the plaintiff’s benefit and protection. 

While it is well established that a plaintiff may be accompanied at a CME by counsel or videographer of her choosing, Florida courts have made it clear that although the defense has a right, by rule to a compulsory exam, defense counsel does not have the right to be present there.  The compulsory physical puts plaintiff in an awkward position of being examined by someone who is not only not of her choosing, but has no interest in the plaintiff’s well being or the plaintiff’s medical treatment.

The defense also loses nothing, because in the event plaintiff chooses to use the video, it must be produced to the defendant before trial.

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TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING MOTIONS TO TRANSFER VENUE TO COUNTY WHERE ACCIDENT OCCURRED BASED ON THE FACTS OF THIS WRONGFUL DEATH PRODUCTS LIABILITY CASE

Ford Motor Co. v. James, 35 Fla. L. Weekly D836 (Fla. 4^th DCA April 14, 2010):

Plaintiff sued Ford and Michelin for negligence and strict liability after her daughter was killed in a car accident while on a trip with her dance team that left from Broward County and was heading to Alabama.  The tire blew out near Lake City, and the decedent was ejected from the vehicle and later died from her injuries.

Plaintiff filed suit in Broward County.  Ford and Michelin each filed a motion to transfer venue to Columbia County pursuant to §47.122 (forum non-conveniens).  Defendant contended that the accident occurred in Columbia County and the most significant witnesses in the case resided there including law enforcement officers, emergency medical personnel, eyewitness and the medical staff from the hospital as well as the medical examiner.

The plaintiff opposed the motions, pointing out that eight of the other passengers in the vehicle were eyewitnesses to the accident and resided in Broward, as did the driver who was a named defendant.  The decedent was a resident of Broward at the time of her death, and her mother resided there, and the subject vehicle was rented there. 

The court noted the three statutory factors used to determine whether to grant a motion pursuant to §47.122:  (1) convenience of the parties; (2) the convenience of the witnesses (most important); and (3) the interest of justice.

Plaintiff identified nine eyewitnesses who were in the vehicle at the time of the accident and were the only individuals to witness it.  This van was also rented in Broward and kept and maintained in Dade.  

Also, as the court noted, the material allegations of the complaint involved a potential manufacturing defect in the tire and the design defect in the van and negligent maintenance.  Thus, the determination on liability was going to turn primarily on expert testimony.  Because there was no suggestion that the experts would be inconvenienced by a trial in Broward, the court held the trial judge properly denied defendant’s motion to transfer venue based on forum non-conveniens. 

TRIAL COURT DID NOT ERR IN ENTERING DIRECTED VERDICT FOR TRUCKING COMPANY ON NEGLIGENT INSPECTION AND MAINTENANCE – DID NOT ERR IN REFUSING TO GIVE VICARIOUS LIABILITY INSTRUCTION BECAUSE OF STIPULATION AND DID NOT ERR IN REFUSING TO GIVE ADDITIONAL CONCURRENT CAUSE INSTRUCTION

Beltran v. Rodriguez, 35 Fla. L. Weekly D844 (Fla. 3^rd DCA April 14, 2010):

The decedent made a u-turn, and her car collided with another car.  The parties stipulated she did not stop before making the turn.  She was hit in a sideswipe collision, causing her vehicle to slide 46 feet before coming to rest on the opposite side of the road, at which point (7 seconds later), she was hit by another car.  The decedent died as a result of the two crashes. 

At the close of the plaintiff’s case, the trucking company (involved in the second collision) moved for a directed verdict.  The case proceeded against the truck driver with the stipulation that if the driver was found liable, the company would be held vicariously responsible.  The jury found no liability on the part of the driver. 

Plaintiff had alleged that the trucking company was negligent in inspecting and maintaining the vehicle.  With the scant evidence of negligent maintenance, plaintiff’s expert testified there was also no evidence that the driver took measures to avoid the collision, thereby showing that none of the truck’s defects contributed to the accident. 

There was evidence of the truck’s defective condition, but no evidence that the condition of the truck caused or contributed to the accident.  Thus, there was no jury question presented, and directed verdict was proper. 

It was also not error to refuse to give the jury the vicarious liability instruction.  Because there was a stipulation on that, there was no need.

The trial judge also properly refused plaintiff’s special instruction on concurrent cause, because the standard instruction covered it, and the plaintiff failed to show the instruction she requested was necessary to properly resolve the issues in the case.  There was also no showing that the standard instruction was not sufficient to resolve the issues, and that the jury was in some way misled or prejudiced by the failure to give the additional instruction. 

TRIAL COURT ABUSED ITS DISCRETION IN STRIKING PLEADINGS AND DISMISSING ACTION WITH PREJUDICE FOR FRAUD ON THE COURT, WITHOUT CLEAR AND CONVINCING EVIDENTIARY BASIS

Hernandez v. City of Miami, 35 Fla. L. Weekly D847 (Fla. 3^rd DCA April 14, 2010):

Based on discrepancies about his injuries in the plaintiff’s answers to interrogatories and during his deposition testimony, the trial court struck the pleadings, and dismissed the plaintiff’s case with prejudice. 

While a trial court does have inherent authority to dismiss an action as a sanction when a plaintiff has perpetuated a fraud, the power must be exercised cautiously, sparingly and only upon a clear showing of fraud.  For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case.

Here, the trial court did not have clear and convincing basis to dismiss for fraud.

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